Lecture 5 - Tort Flashcards
Tort =
Civil action not based upon law of contract. Based upon ideas of fault and compensation. Used when actions of one party result in need to sue, but no contract signed/ entered into. Someone else must have been at fault.
Tort law allows society to:
Allocate risk (to party best able to cope with risk)
3 things must be proved before claim can be established in tort:
- Claimant must prove defendant owed claimant duty of care
- Must prove duty of care was breached
- Must prove that lack of duty of care caused the claimant’s injuries
If you are legally negligent…
Personally liable to pay damages/ compensation for loss/ injury they suffer
Claimant must satisfy 3 criteria:
- Damages must be foreseeable
- Must be sufficiently proximate relationship between parties
- Must be ‘fair, just and reasonable’ for court to impose duty of care
Positive actions
Liability does exist. If person chooses to intervene, only liable if the intervention made claimant’s position worse than if not taken place
Failure to prevent harm from arising..
Liability does not exist unless special relationship between defendant and claimant, or when defendant has failed to take reasonable steps to abate danger created by third party
Defendants immune from suit in certain situations include
Local authorities, emergency services and lawyers in some situations
Breach of duty of care =
Defendant falls below acceptable standard of care
Factors which influence standard of care (5)
- Foreseeability of harm
- Magnitude of risk
- Burden of taking precautions
- Utility of defendant’s conduct (eg social utility)
- Breach of common practice
If: B > P + L
No liability
If: B < P + L
Liability
Children subject to
Standard of reasonable child at the same age
Defendants acting in an emergency are held to
Standard of emergency
Res ipsa loquitor
‘The thing speaks for itself’ > must have been negligence as result could not have occured without negligence, but difficult to prove specific facts
Causation
Decided by “But for” test in cases of concurrent causes
Indeterminate causes
Where two or more defendants may potentially be at fault for single cause of harm, but impossible to determine which one did it > both held jointly liable and had to pay damages
Cumulative causes
Two causes combine to cause one harm or eg in car crash, one car hits, then another. Hold both defendants liable for whole of damage
Consecutive causes
One cause follows upon second cause. Key issue for court to determine is whether effect of first act can said to be overtaken/ obliterated by second act
Remoteness of damage
Cases where law will deny recovery on basis that loss in question is very unusual result of defendant’s conduct therefore too remote to be claimed
3 issues in determining whether damage too remote or not
1) Foreseeability of kind of damage
2) Foreseeability of extent of damage
3) When claimant suffers greater injury than expected because of personal characteristic ‘eggshell skull rule’
